In Florida, power of attorney allows an individual to appoint an agent – a legal representative – to act on their behalf.
A durable power of attorney (DPOA) can play a crucial role in asset transactions. In contrast, the medical power of attorney can give a trusted agent the right to make health care decisions for the principal while the latter cannot do so.
Please read on to learn more about obtaining power of attorney in Florida and why you should do it.
Who Qualifies to Be an Agent with Power of Attorney?
According to Florida law, any capable legal adult can function as an agent with power of attorney. The most important thing is to appoint someone you trust as your agent. Keep in mind that POA gives an agent exclusive, full authority to carry out your prearranged wishes in vital, sometimes life-or-death, matters. You should never name someone as power of attorney just because you know them or they are your only option. There are alternatives!
The Duties of an Agent with POA in Florida
The principal and agent have a fiduciary relationship, which means that the agent must act in the principal’s best interests and within the scope of authority the specific POA grants him or her (such as signing a contract, selling property, or making health care decisions in the principal’s name). The agent must make an appropriate effort to fulfill the principal’s reasonable expectations.
If an agent acts against the principal’s best interests or oversteps the bounds of POA, he or she may be liable to the principal or the principal’s successors. If an agent is unsure about their authorization to perform a specific act under the POA, he or she should consult a lawyer.
What an Agent with POA Cannot Do
Although a POA document can give an agent broad authority, there are a few actions an agent cannot perform on behalf of the principal. These include voting in a public election, creating or revoking a will, or acting in place of the principal as a trustee, guardian, or conservator.
How to Obtain POA in Florida
It is common for someone to think that they can “obtain a power of attorney” for someone who is incapacitated. The vital thing to know is that this cannot be done. Under Florida law, a power of attorney requires that the person making it have the mental capacity to understand what he or she is signing. It also requires the principal’s signature and two witnesses aged 18 or older, and it must be notarized.
While you want to encourage aging parents to have a plan in place, you should minimize your involvement in putting the plan together. It is common for the validity of a document to be challenged, especially if there are feuding family members or someone is beginning to show signs of mental decline. If you are trying to obtain a POA for someone who has the capacity, we recommend that you take a hands-off approach with the person you want to sign the document. You can talk to them about its importance and why it is necessary, but you should never encourage someone to make you the agent.
If the principal is no longer legally able to sign a POA document, the only remaining option is a guardianship arrangement. We cannot overemphasize the importance of a well-thought-out and well-maintained estate plan. Failing to prepare a plan or failing to keep it current can potentially result in thousands of dollars in legal fees, as well as certain aspects of your private affairs being made public.
Power of Attorney Types
Several POA types exist in Florida, including:
Medical Power of Attorney
Medical POA, otherwise known as a designation of health care surrogate, specifies an agent responsible for handling the principal’s healthcare decisions according to the latter’s previously stated wishes. This is the “who” portion of your estate plan regarding your medical decisions. Simultaneous to signing this document, we also recommend signing a living will, which is the “what” portion of your medical decisions. The living will states your wishes if you are terminally ill, have an end-stage condition, or are in a persistent vegetative state.
Durable Power of Attorney
A durable POA enables an agent to make any financial and medical decisions on the principal’s behalf. Unlike other POA types, a durable POA agreement holds even if the principal becomes incapacitated (due to progressive dementia, for instance).
Why You Need to Take Action Today
We are not alarmists. However, none of us have a guarantee of tomorrow, and unfortunately, the worst-case scenario may be lurking just around the corner. We have seen cases where a simple bike ride put someone into a medically induced coma due to a bug bite or being hit by a car. We have seen cases of relatively young people ending up with a traumatic brain injury due to car accidents or slip and falls. Bad things can happen to us at any age. While we don’t like to imagine worst-case scenarios, they happen every day, and these events don’t discriminate. The only option when you don’t have a plan is to seek help from the court. It is crucial to have a plan in place. After all, do you really want the government’s finest bureaucrats making decisions about what happens to you?
Law Offices of Sherri M. Stinson, P.A.: Estate Planning Attorney in Palm Harbor, FL
Estate planning attorney Sherri M. Stinson is passionate about planning for any situation because she knows what may happen when you don’t. Arranging for power of attorney allows you to control your future your way.
Protect your interests, gain peace of mind, and take care of your family in any situation. If you want to feel valued and heard today, and for the rest of your life, call the Law Offices of Sherri M. Stinson, P.A. at (727) 351-7057 or complete our online form to schedule a discussion with attorney Sherri Stinson in Palm Harbor, FL, today.
Copyright© 2021. Law Offices of Sherri M. Stinson, P.A.
The information in this blog post (“post”) is provided for general informational purposes only and may not reflect the current law in your jurisdiction. No information in this post should be construed as legal advice from the individual author or the law firm, nor is it intended to be a substitute for legal counsel on any subject matter. No reader of this post should act or refrain from acting based on any information included in or accessible through this post without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient’s state, country or other appropriate licensing jurisdiction.